Bar News - November 4, 2005
Rules for Limited Representation Submitted to Supreme Court
By: Dan Wise
The Supreme Court Advisory Committee on Rules has endorsed the concept of limited legal representation in litigation, essentially adopting proposals made by the Pro Bono Board and the Ethics Committee in presentations to the Rules Committee last June.
The Supreme Court will accept comment on these rules, along with a number of other rule changes in other areas, until Dec. 15, 2005. (See summary of other rule changes on page 25 or visit http://www.courts.state.nh.us/supreme/orders/R20050003.htm).
The Supreme Court, in an order dated Oct. 13, 2005, invited comment on a series of rule changes, affecting all levels of the courts, that would allow attorneys to enter “limited appearances” for “otherwise unrepresented litigants” by submitting forms, signed by the clients, that “shall state precisely the scope of the limited representation…”
The attorney’s involvement would be limited to only what is specifically stated in the form detailing the scope of representation.
Attorneys drafting pleadings for litigants but not appearing in court on behalf of the clients would not be required to identify themselves in the pleadings, except to certify that: “This pleading was prepared with the assistance of a New Hampshire attorney.” The requirement for the litigant to state to the court that the brief was prepared with the assistance of an attorney, but not be required to name the attorney, was one of three options provided to the Advisory Committee on Rules in the submission by the Ethics Committee, and follows the approach adopted in a “Practical Ethics” article published May 12, 1999. (See Legal Links at www.nhbar.org for access to Ethics Committee materials, or click on Ethics Committee materials in the Casemaker library.)
Attorneys also may prepare pleadings for litigants for whom they have entered a limited representation in court; whenever an attorney writes a brief for a client, even in the case where the attorney is not identified by name, the attorney is considered to have certified that: “to the best of the attorney’s knowledge, information and belief there is good ground to support [the pleading]; and that it is not interposed for delay.”
The language contained in the rules for the various court levels also “discourage[s]”, but does not “prohibit” limited representation of a client “who is entitled as a matter of law to the appointment of counsel…” This provision addresses concerns that in criminal cases where an individual’s liberty is at risk, and in some civil cases where fundamental constitutional rights are at stake, that limited representation would not provide adequate access to legal counsel..
Termination of a limited representation can be automatic “upon completion of the agreed representation, without the necessity of leave of Court,” so long as the attorney files a “withdrawal of limited appearance” form giving notice to the Court and all parties of the completion of the limited representation.
Related changes are proposed for Rule 1.2 of the Rules of Professional Conduct. Rule 1.2(c) now reads: “A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent. In providing limited representation, the lawyer’s responsibilities to the client, the court and third parties remain as defined by these Rules as viewed in the context of the limited scope of the representation itself; and court rules when applicable.”
Another proposal would relax conflict rules for attorneys providing “one-time consultation with a client without the expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter” for consultations that occur under the auspices of an NHBA program or program sponsored by other nonprofit organization or a court.
Virginia A. Martin, Associate Executive Director for Legal Services, said the changes sought by Pro Bono would pave the way for new and expanded ways of providing legal services to the mounting numbers of low- and moderate-income people who are left unserved by a legal services system that, for the most part, is shackled to traditional “one-attorney, one-client” models.
Martin praised the work of Keene attorney John Norton, who chairs the Pro Bono Governing Board and also is a long-time member of the Ethics Committee, for his work thinking through the coordinated changes in rules required to allow unbundling to be feasible. “Other states are very interested in our work,” said Martin. “John has carefully combed through all of the existing models and come up with what we think will be the best set of rules to allow unbundling of legal services in the country.”